R v MITCHELL [2021] NZHC 2175

R v MITCHELL [2021] NZHC 2175 [17 August 2021]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2019-009-4452[2021] NZHC 2175THE QUEENvHARRY JAMES MITCHELLHearing: 17 August 2021Appearances: H V Bennett for CrownJ J McCall for DefendantJudgment: 17 August 2021SENTENCING REMARKS OF MANDER J[1] Mr Mitchell, you are for sentence this morning on five charges of making anobjectionable publication,1 two charges of distributing an objectionable publication,2a representative charge of possession of an objectionable publication,3 two charges ofburglary,4 and five charges of committing an indecent act on a child under the age of12 years.5 You were found guilty of those charges and your sentencing was transferredto this Court for the purpose of considering the imposition of a sentence of preventivedetention.61 Films, Videos and Publications Classification Act 1993, ss 123(1)(a) and 124(2)(a): maximumpenalty of 14 years' imprisonment.2 Films, Videos and Publications Classification Act 1993, ss 123(1)(d) and 124(2)(a): maximumpenalty of 14 years' imprisonment.3 Films, Videos and Publications Classification Act 1993, s 131A(1): maximum penalty of 10 years'imprisonment or a fine of $50,000.4 Crimes Act 1961, s 231(1)(a): maximum penalty of 10 years' imprisonment.5 Crimes Act 1961, s 132(3): maximum penalty of 10 years' imprisonment.6 Sentencing Act 2002, s 90.The offending[2] Your offending involved two young victims.The first victim[3] The first two charges of making an objectionable publication concernoffending that occurred between October 2014 and February 2015 at Kaiapoi. Themother of a six-year-old boy advertised for a boarder to occupy a caravan situated onher property. You responded and began living in the caravan. You were also permittedaccess to the house to use the bathroom and kitchen. During this period you befriendedthe family and played with the young boy.[4] There was evidence at your trial that while playing with the child on thetrampoline you touched him, as it was referred to in the evidence, "in the middle ofhis bottom cheeks", and on occasions your hand would slip onto his penis. On oneoccasion after you had moved into the house, because of an issue relating to the use ofthe caravan, you deliberately exposed your penis to the young boy when he came intothe room you were occupying at the time.Making an objectionable publication (x 2)[5] Two of the charges of making an objectionable publication relate to videos thatyou covertly took of the child while he was taking a bath. You entered the house,approached the bathroom and filmed through a small gap in the doorway. The videozoomed in on the victim's genital area. There was a third video made when the childwas in the bath but fully clothed. You filmed the child while naked from the waistdown, exposing your penis to him. This video, however, was not classified asobjectionable and there is no charge in relation to that incident.Burglary (x 2), indecent act with a child under 12 (x 4), making an objectionablepublication (x 1)[6] You made two other videos when you entered the house at night while thefamily was asleep. On the first occasion this occurred the video captures you exposingyour penis in the doorway to the young boy's bedroom, and then standing beside himwhile he is sleeping, you begin to masturbate yourself. You are recorded as saying,"That was a dry run. Next time I'm going to rape you in the bum and mouth". Thisvideo was classified as objectionable.[7] On a second occasion, you entered the house and went into the child's bedroomwhere you positioned yourself with your buttocks over the child's head and said,"Good night". When the young boy stirs, you exit the room and the house. This video,however, was not classified as objectionable.[8] In relation to both entries into the house, you were convicted of burglary onthe basis that your intention was to commit an imprisonable offence, namely, tocommit indecent acts on the victim and/or to make an objectionable publication.[9] On a further occasion, you laid down next to the sleeping boy and took threephotographs of your body, positioned on an angle where your penis and testicles wereclose to the boy's head before then posing with your buttocks over the child's head.These photographs were not classified as objectionable. However, they are the basisof three of your convictions of committing indecent acts on a child under the age of12.[10] Despite this material being discovered on your computer following theexecution of a search warrant in February 2019, you deny any knowledge of either therecordings or the images and continue to do so. You claim they were on a cell phonethat was given to you by the boy's family.The second victim[11] Your offending against your second victim was committed between Februaryand March 2015. You befriended another family who were staying at a campsite whereyou were also living. Your victim was a boy aged around three years at the time.[12] On a number of occasions you played with the victim and his sister in your car.After one of those occasions the young boy told his mother that your "whizzer is asbig as a cucumber". After this disclosure you were asked to leave the campsite by theowners.Indecent act on a child under 12 (x 1), making an objectionable publication (x 2)[13] In April 2019, the boy's mother confirmed to police that a photograph theyshowed her of a boy wearing a red pyjama top with the words "Fire Department" onit was her son. The pyjamas were a favourite of his which he wore when the familywere living at the campsite.[14] The young boy can be seen wearing the red top in two videos that you made ofthe child while committing indecent acts on him in the vehicle, when you exposedyour erect penis to him. In the first video you are seen tickling the boy andencouraging him to touch your penis. The child can be seen swatting your penis withhis hands.[15] In the second video the child is again wearing the red top but is naked from thewaist down. You are encouraging the child to touch your penis. The child holds yourpenis in both hands and moves them up and down in a masturbating motion. You arerecorded on the video as saying, "What do you do with a cucumber?", to which thechild replies, "Eat it". You then say, "Why don't you eat it?"Distributing an objectionable publication (x 2)[16] The authorities have identified activity on the internet that relates to these twovideos. On 17 October 2015, you uploaded these videos onto a forum "BoiVIDS".On one of the occasions that you uploaded the videos to that site, you commented,"Here is the first lot of pics of my four [year old] sex toy (more cumming real soon)."A subsequent search warrant executed on your computer confirmed you were theperson who had uploaded these videos despite your assertions to the contrary whichyou continue to maintain.Possession of objectionable publications (representative charge)[17] Multiple child pornography images depicting children posing with no clothes,sexual activity between children and between adults and children, sadism andbestiality were located on your computer. The Crown estimates there were some40,000 objectionable images.Victim impact statements[18] The significant impact of your offending on your victims and their families isevident from the victim impact statements that I have received. The second victim'sparents speak of the trauma and grief they have experienced as a result of your abuseof their child. They say they are no longer as trusting of people and are now morecautious about whom they allow their children to spend time with. They recount howyour offending has changed their son's personality and observed that you betrayed thekindness that they extended to you.[19] The effects of your offending on the first little boy have been considerable. Hesuffers from severe anxiety, depression and stress that has affected his schooling. Hehas trouble sleeping and will need counselling and support to deal with having been avictim of sexual abuse. His mother has expressed feelings of shame and guilt at notbeing able to protect her son. The effects of your offending on these children and theirfamilies has been profound and will likely be long-lasting.Purposes and principles of sentencing[20] In sentencing you this morning, I am required to bear in mind the purposes andprinciples of sentencing.7 I need to hold you accountable for the harm you have causedto your victims and to the community, and to denounce your conduct. There is also aneed to deter both you and others from committing similar offences. While thesentence I impose must reflect the gravity and seriousness of your offending, I mustalso have regard to your personal circumstances and the prospects of yourrehabilitation. Inevitably, however, having regard to your previous sexual offending,the protection of the community must be an obvious focus.Prior offending[21] You have a number of relevant previous convictions.[22] In 1990, you were convicted of indecent assault on a boy under 12 years. Thatoffending has parallels with your current offending. The mother of your victim placed7 Sentencing Act 2002, ss 7 and 8.an advertisement in the newspaper asking for a babysitter. You replied andarrangements were made for you to babysit the child and his twin brother over aweekend. After the victim had gone to bed you went into the bedroom, stood by hisbed, put your hand under the blankets and touched his penis. The victim told you toleave and the next morning he disclosed to his mother what had occurred. You pleadedguilty to that charge.[23] In 1999, you were convicted of two charges of committing an indecent act withintent to insult or offend. You used a sausage as a prop to simulate masturbation to aboy and his sister. Three days later you exposed your buttocks and anus to two youngboys, one of whom was the same boy as the previous incident. You pleaded guilty tothose charges.[24] In 2003, you were convicted of 10 charges of possessing objectionablepublications as a result of the police seizing your computer and viewing severalobjectionable images of children either in sexual poses or engaged in sexual acts. Inaddition to the computer hard drive being seized, numerous computer discs andvideotapes were also examined. A subsequent review of that material revealed sexualimages of children, including children involved in sexual acts with other children andwith adults, violent rape scenes and other objectionable images. In total, 262 filesdepicting child sexual exploitation were identified.[25] Despite pleading guilty to these charges, in recent interviews you haveundertaken with a clinical psychologist, Mr Carrell, you denied this conduct.Although, your counsel this morning advises me that he has received instructions fromyou that you now accept this offending occurred.Personal circumstances[26] In addition to the pre-sentence report, I have received reports prepared by thetwo clinical psychologists, Mr Carrell, who I have just mentioned, and Dr Tucker.Their reports provide me with details of your personal background.[27] Mr Mitchell, you are a 49-year-old single man with no dependents. You have32 previous convictions, of which several are of a sexual nature, to which I havereferred. You also have convictions for dishonesty and some violence.[28] It is apparent that you had an unstable upbringing in which you experiencedand witnessed physical and emotional abuse. This included an extended period ofsexual abuse that you report was perpetrated by [an older relation] when you wereaged between five and 12 years. Your description of the dynamics of your familyindicate a broad pattern of intergenerational sexual abuse. Dr Tucker suggests thatyour experience of sexual abuse may have compromised your ability to recognisenormal sexual boundaries and normalised sexually deviant behaviour, includingsexual abuse of children.[29] The information available to me discloses that the ability of your mother toprovide stable care was disrupted due to her significant mental health difficultieswhich resulted in you being periodically placed in foster care. You struggled sociallyand academically at school and report being subject to bullying. You did not obtainany formal qualifications and were expelled. By the age of 20 you were using alcoholand cannabis daily as a coping mechanism, although this apparently ceased from aboutthe age of 23. You described a marginalised and transient lifestyle to the report writers,during which you maintained few friendships and had few community ties. You havebeen predominantly unemployed and sustained yourself using the unemploymentbenefit.[30] You report a long term history of major depression which led to admission toa psychiatric facility for several months in your early 20s. Dr Tucker notes that youhave attempted suicide on multiple occasions when experiencing acute distress.Mr Carrell opines that your early life experience of sexual abuse has resulted in yousuffering from post-traumatic stress disorder and lasting emotional difficulties. Youare reported to remain at risk of suicide.Finite sentence[31] A sentence of preventive detention can only be imposed if I am satisfied youare likely to commit another qualifying sexual offence if released at the expiry date ofthe sentence I would otherwise impose. It is therefore necessary for me to considerthe appropriate finite sentence for your offending. As your counsel, Mr McCall, hasidentified, the key issue for me is whether a finite sentence coupled with an ExtendedSupervision Order (ESO) will meet the principles and purposes of the Sentencing Actor, alternatively, whether preventive detention should be imposed.[32] In undertaking that task, I intend to treat the charges of making anobjectionable publication involving the second victim, where you induced the child tohandle your penis, as the lead offence. That charge carries a maximum sentence of14 years' imprisonment.Starting point[33] The Court of Appeal has endorsed the approach taken in the United Kingdomto sentencing for offences involving indecent photographs of children as a "usefulguide" to sentencing in this country when dealing with objectionable publicationsrelating to child sexual abuse material (the UK Guidelines).8 The UK Guidelines wereupdated and reissued in 2014.9 This Court has noted that sentencing for this type ofoffending has become less settled following changes to those UK Guidelines andincreases in the maximum sentencing levels introduced in this country in 2015.10Nonetheless, the Court of Appeal has recently held that, in the absence of a guidelinejudgment, the UK Guidelines still afford assistance, if not in terms of actual sentencinglevels, at least insofar as they describe the kinds and relative seriousness ofobjectionable content.11 In relation to sentencing levels, the UK Guidelines need tobe applied flexibly, and only to the extent they are considered helpful in any givencase.128 R v Zhu [2007] NZCA 470 at [15]; and R v Clode [2008] NZCA 421, [2009] 1 NZLR 312 at [52].9 Sentencing Council for England and Wales Sexual Offences Definitive Guidelines (1 April 2014)at 75–79.10 Pattison v Police [2018] NZHC 2163 at [31]. In May 2015, Parliament increased the maximumsentence for distribution of objectionable publications from 10 to 14 years, and the maximumpenalty for possession of objectionable publications from 5 years to 10 years.11 Wittig v R [2021] NZCA 100 at [34].12 Pattison v Police, above n 10, at [24]; citing Stewart v Department of Internal Affairs [2014]NZHC 2209 at [17].[34] The UK Guidelines delineate three categories of indecent images, and describethe offences of possession, distribution and production, with the latter being the mostserious form of offending. Category B of the UK Guidelines concerns non-penetrativesexual activity and provides for a suggested range of sentence of one to four years'imprisonment for the offence of producing such material.[35] The Crown submits that the offending against the second victim falls at thehighest end of this category, involving, as it did, non-penetrative sexual activity inwhich you filmed your victim holding your penis in both hands and moving them in amasturbating-type motion. Regard also has to be taken of the very young age of yourvictim and the highly covert nature of the offending. The Crown submitted that aninitial starting point in the vicinity of four to four and a half years' imprisonmentshould be taken. Whereas your counsel submitted a starting point of between threeand four years on this lead charge of making an objectionable publication would beappropriate.[36] The aggravating features of this offending against your young victim arereadily identifiable:(a) The victim's age made him particularly vulnerable, being only three atthe time of the offending. The only reason the offending came to lightwas because you had uploaded videos of him to child pornographywebsites. He himself is unable to recall the extent of your offending onhim because he was so young.(b) There is the significant age disparity. You were in your 40s and yourvictim was but an infant.(c) There is the premeditated nature of the offending. You befriended thechild's family while they were staying at a campsite. You played withthe children, which of itself was a form of grooming, and youmanipulated the child's family in order to gain access to the child. Youroffending represents a significant breach of trust.(d) Although it is acknowledged that your second victim was too young toremember the offending, such offending often has a long-lasting impacton victims, as is apparent from the detrimental effects on your firstvictim.13 The harm caused is of course magnified as a result of yourdistribution of the material on the darknet. Demand for such materialfuels both its production and supply, and offences involving thepossession and distribution of such material victimises and exploitschildren.14[37] Having considered the relatively small number of cases available in relation tothe production of objectionable material that post-dates the legislative amendmentsincreasing the maximum sentences, I consider an appropriate starting point on the leadcharge of making an objectionable publication in relation to your second victim wouldbe four and a half years' imprisonment.15[38] In relation to the charges of making an objectionable publication that depictsyour first victim, I consider they fall within the higher end of category C of the UKGuidelines, being indecent images that do not involve the child engaging in sexualactivity. This offending involved you entering your victim's room at night, standingby him while he was sleeping, and masturbating yourself. However, similaraggravating features are present. There is the vulnerability of the child, who was onlysix years old at the time and asleep during the offending; the age disparity; and thepremeditated nature of your offending.[39] You took steps to groom the child, giving him presents and engaging him inplay, during which you took the opportunity to touch him both on the buttocks and thepenis; and on occasions exposed your penis to him. You befriended the child's familyand abused their trust, entering the house at night to perform indecent acts when youwere only permitted to go into the house to use the bathroom facilities or the kitchen.There is the frequency of the offending, occurring, as it did, on at least five occasions,and the significant resulting harm to the child.13 R v Zhu, above n 8, at [19].14 Webb v R [2016] NZHC 2966 at [54].15 See Tilyard v Police [2016] NZHC 1377; and Walsh v R [2016] NZHC 2747.[40] I consider an uplift of one and a half years' imprisonment is appropriate for thecharges relating to the first victim of making objectionable publications.[41] An uplift is also required to be imposed to reflect the balance of the offendingagainst your two victims. This includes the five charges of committing an indecentact with a child under 12. In particular, there is the taking of photographs of the firstvictim while positioned so that your genitals and buttocks were in close proximity tothe child's head, the two charges of burglary, and the two charges of distributing anobjectionable publication in relation to the videos taken of your second victim. Careis required because of the overlap of some of this offending with the charges of makingan objectionable publication, but those offences require to be marked by a substantiveuplift.[42] As I have noted, the distribution of such exploitative material magnifies theharm and contributes to the circulation of such objectionable material online. Theburglary charges reflect the fact that the offending on your first victim took place atnight while the child was asleep, when you entered his home where he was entitled tobe safe. Having regard to the principle of totality, I consider an uplift of one and a halfyears' imprisonment is also appropriate.[43] In relation to the representative charge of possessing objectionablepublications, your counsel, Mr McCall, initially challenged the Crown's submissionthat you were found in possession of "over 40,000" objectionable images. The trialJudge's decision describes the charge as relating to four objectionable documents.However, the charge was a representative one. As has now been acknowledged byyour counsel, because of the volume of the material you possessed, it is apparent fromthe evidence at trial that you did have thousands of such objectionable documents onyour computer, of which the four images referred to in the charge were but a verysmall sample. I have described those images earlier in my sentencing remarks. I mustbe cognisant of the age and vulnerability of the children depicted. Again, after takinginto account the principle of totality, I consider the charge should attract a further upliftof one and a half years' imprisonment.[44] In total therefore, I arrive at a starting point of a finite sentence of nine years'imprisonment.Aggravating features personal to the offender[45] It is acknowledged by your counsel that an uplift is necessary to recognise thatthese charges represent a continuation of previous offending. I have already reviewedthat prior offending. As Dr Tucker notes in her report, your previous offendingdemonstrates your sexual deviance and exploitation of children which is a feature ofthe behaviour that you have engaged in throughout your adult life. It is apparent youhave a longstanding and unwavering sexual interest in pre-pubescent boys. Yourprevious offending also highlights the covert nature of your conduct, which is perhapsunsurprising, but also your tendency to ingratiate yourself with trusting families inorder to secure access to vulnerable children.[46] I am satisfied that an uplift of one year is required in recognition of yourprevious convictions for like offending.Personal mitigating factors[47] The reports available to me detail your difficult upbringing, during which youwere subject to an extended period of sexual abuse perpetrated by an older relationand other physical and emotional abuse from within your family. Dr Tucker hassuggested your own experience of sexual abuse may have compromised your abilityto recognise normal sexual boundaries, and Mr Carrell emphasised that you wereexposed to ongoing trauma during a formative development period that left you withsignificant emotional trauma. Having regard to that background, I consider there issome causative nexus between your abusive upbringing and your longstanding sexualdeviance that needs to be recognised. Accordingly, I apply a discount of one year (orapproximately 10 per cent) in recognition of your difficult upbringing and personalbackground.Conclusion as to finite sentence[48] In total, therefore, the finite sentence of imprisonment that you would besentenced to is one of nine years.Minimum period of imprisonment[49] Because such a sentence would be more than two years' imprisonment, I mayconsider the imposition of a minimum period of imprisonment.16 The court mayimpose a minimum period of imprisonment where it is satisfied that the ordinaryminimum is insufficient either to hold you accountable for the harm you have done, todenounce your conduct, deter you or others, or to protect the community.17 Youreligibility for parole would arise after three years' imprisonment.[50] Your offending involves recidivist sexual abuse of children which does notappear to have diminished notwithstanding various opportunities for treatment andrehabilitation. A minimum period of imprisonment therefore needs to be carefullyconsidered for the purpose of protecting the community. The evidence of the heathassessors is clear that your sexual deviance is longstanding and appears to be stableacross time. You do not present as being motivated to address these issues and itfollows therefore that you present a real risk to the community. On the other hand, itis important that you engage in treatment and have an incentive to do so. I consider aminimum period of imprisonment of at least half the finite period of imprisonment,possibly more, would have to be imposed if a finite sentence is imposed. Thereafter,any potential release into the community would be a question for the Parole Boardbased upon the risk you present at that future time.Preventive detention[51] Having determined the appropriate finite sentence, I must now turn to considerthe issue of preventive detention. The purpose of preventive detention is not16 Sentencing Act 2002, s 86(1).17 Sentencing Act 2002, s 86(2).punitive.18 Rather, it is a sentence designed to "protect the community from those whopose a significant and ongoing risk to the safety of its members".19[52] Before I may consider you eligible for a sentence of preventive detention, Imust be satisfied that you are likely to commit another qualifying sexual offence ifreleased at the expiry date of a finite sentence.20 If the statutory preconditions arefulfilled, a sentencing court may exercise its discretion to impose a sentence ofpreventive detention.21[53] I am required to exercise judgment about the risk you will present in the future,after imprisonment and such treatment as the prison system may offer you and withwhich you are willing to engage. I must be satisfied that a finite prison sentence wouldnot be sufficient to protect the public. As I have noted, I have received reports fromtwo appropriate health assessors regarding the likelihood of you committing a furtherqualifying sexual offence to assist me in making that decision.[54] The Sentencing Act sets out a number of matters that I must consider whendeciding whether or not to impose preventive detention.22 In assessing those factors,I have taken into account the submissions of the Crown and your counsel, and havebeen assisted, as I say, by the reports prepared by the health assessors regarding thelikelihood of you committing a further qualifying offence.Pattern of serious offending[55] I must first consider any pattern of serious offending disclosed by your history.This requires consideration of the frequency and duration of your current offending,the period of time that has elapsed since your last offending, and its overall frequency.[56] Your last conviction for serious offending, being 10 charges of possession ofobjectionable publications, was in June 2003, with the offending having occurred inAugust the previous year. Three years earlier, you were convicted on two charges of18 R v C [2003] 1 NZLR 30 (CA) at [6]; J v R [2019] NZCA 581 at [51].19 Sentencing Act 2002, s 87(1).20 Sentencing Act 2002, s 87(2).21 M (CA236/15) v R [2016] NZCA 77 at [28].22 Sentencing Act 2002, s 87(4).committing an indecent act with intent to insult or offend, and some nine years priorto that on a charge of indecent assault on a boy under 12 years.[57] Mr McCall has emphasised to me that this offending is of some vintage andthat in relation to none of the charges did you receive a term of imprisonment. Nor,he stressed, were there any rehabilitative aspects of your prior sentences whichaddressed your sexual deviancy.[58] Ms Bennett, on behalf of the Crown, however, submitted that while your pastoffending has been limited to indecent acts and has not escalated to full penetrativesexual conduct, it does represent a pattern of sexual offending against children thatspans your adult life and must be regarded as serious, being offending against children.Ms Bennett expressed concern about the covert nature of your offending, and shenoted that you have previously disclosed other offending against children whenbabysitting in the 1990s that did not come to the attention of the authorities, althoughyou now deny any such admissions.[59] Dr Tucker has noted that your pattern of sexual offending has spanned yourentire adult life and she considers that your history suggests a longstanding sexualinterest in pre-pubescent boys. Mr Carrell opined that your sexual preference for pre-pubescent boys has been present since adolescence and that your sexual offendingacross your adult life indicates stability in your deviant sexual preferences.[60] I consider that, while the offending that has resulted in your previousconvictions has to be recognised as relatively infrequent given the span of time overwhich they have been incurred, there is a consistent pattern of you acting on yoursexual attraction towards children. It is offending that involves a degree of planningin terms of the way you gain access to children, by befriending families and acquiringtheir trust. Your grooming behaviours indicate a significant predatory element. Yourconnection with others with similar deviant preferences through the internet and yourproduction and dissemination of child pornography with such groups demonstrates anincreasing versatility and intensity in your criminal sexual behaviour.The seriousness of the harm to the community caused by the offending[61] The seriousness of the harm caused to your victims by your offending isindisputable. It is well-recognised that such offending on children places theiremotional and psychological wellbeing in jeopardy and is very likely to be ongoing.The harm caused can potentially be very grave, more so because of exposure on theinternet. The covert nature of your offending and the very young age of your victimsmeans that this offending is difficult to detect and may rarely come to light.Meanwhile, the damage caused to the children goes unaddressed.Information indicating a tendency to commit serious offences in the future[62] The available information consistently indicates that you represent a future riskof sexual recidivism. You score in the high-risk range, calculated by empiricallyinformed risk tools.[63] Both of the heath assessors' reports concluded that you fall within the high-riskcategory because of your pattern of sexual deviance. You continue to deny theoffending and refuse to acknowledge what you have done. That does not give causefor optimism in terms of your ability to address your offending. However, yourcounsel has sought to emphasise that you did accept your prior offending when youpleaded guilty to it and submitted that you are prepared to consider rehabilitativecomponents of any sentence, which he described as a step forward for you.[64] On the Static-99R Risk Scale Dr Tucker assessed you as being in the categoryof "well above average risk" of being charged or convicted of another sexual offence— the highest risk category. On the "Violence Risk Scale: Sexual Offence version"(VRS:SO), you were assessed as being in the "well above average risk" category.Dr Tucker concluded that you had an entrenched pattern of sexual deviance and opinedthat you wold require extensive correctional interventions over years to reduce yourhigh risk of reoffending.[65] Mr Carrell assessed you as being in the high-risk category under the AutomatedSexual Recidivism Scale. On the VRS:SO scale, you were assessed by him as alsobeing in the high-risk category for reoffending because of your sexually deviantlifestyle, sexual compulsivity, offence planning processes, poor insight and emotionalcontrol, lack of community support, and poor compliance with communitysupervision. Mr Carrell identified your entrenched personality features, includingyour ability to manipulate others, repeated pattern of lying and cognitive distortionsthat blame others, as all being risk factors associated with an ongoing risk of offending.Mr Carrell also noted your deviant sexual interests have remained stable over alengthy period of time and show no signs of reducing with age.The absence, or failure, of efforts by the offender to address the cause or causes of theoffending[66] Your counsel has had to acknowledge that you have barely, if at all, sought toaddress the underlying issues of your offending. However, he sought to submit thatyour views on rehabilitation and the need to address the root causes of your offendinghave changed. Having regard to your continued denials and the stance you continueto take in respect of your current offending, that is not at all evident to me.[67] Dr Tucker records that you have denied responsibility for any of the offencesfor which you have been convicted. He considers that your denials and broader patternof sexually deviant behaviour could be the result of a longstanding pattern ofexternalising responsibility of adverse life experiences and/or your concern about theoutcome of this sentencing process. The pre-sentence report writer observed that youcontinue to deny the offending and that such a denial would significantly reduce theefficacy of any rehabilitative programme for which you may be eligible.[68] According to Community Corrections records, you engaged with acommunity-based treatment programme between September 2001 and May 2002 butyour attendance was reported as inconsistent and you failed to disclose relevant risk-related information. Dr Tucker opined that your level of engagement was likelylimited by a lack of motivation and therefore your risk of sexual reoffending was notadequately addressed at that time. You engaged in one treatment session in November2015. At that time, you were reported as presenting as highly motivated to desist fromsexual offending and developed a brief safety plan to assist you to continue to managethe risk of sexual reoffending. However, it is notable that you did not disclose theoffences which had occurred only a short period before. This non-disclosure tends todemonstrate an ability to manipulate others during the process of psychologicalassessment and treatment.[69] Dr Tucker concluded that, while prior sanctions and supervisory oversight haveresulted in temporary periods of desistance from sexual offending, your poorengagement in treatment has meant the risk factors remain unaddressed. He found thatin order to reduce the risk you present you would need to meaningfully engage in ahigh intensity treatment programme over an extended period of time in a structuredand secure environment with a high level of reintegration support. While Dr Tuckerassessed you as intellectually capable of engaging in offence-related treatment, youpresent with a lack of insight and motivation. She observed that a significant changewould be required in order for you to engage meaningfully in future psychologicaltreatment.[70] Mr Carrell considered that you displayed a dismissive attitude towards thecourts and the police, that you viewed yourself as the victim and continued to stronglydeny the offending. You placed blame on the victims' families and the police for thecircumstances you find yourself in. When asked if you would be willing to addressyour sexual offending by treatment during the course of your sentence, you repliedthat your participation would be for "educational purposes only" and that you wouldremain unwilling to accept or acknowledge guilt for your offending. Mr Carrellopined that, while you would benefit from engaging in a specialist prison-basedtreatment for child sex offenders, your ongoing denial of your historical and currentsexual offending represents a barrier to such treatment being effective.[71] From the information available to me, it is apparent that you have failed tosuccessfully engage in treatment programmes in the past to address your offendingbehaviour. As I have noted, you attended a community-based treatment programmewhich you engaged with between September 2001 and May 2002, and underwent abrief period of assessment and treatment in 2015 which focused on the risk of sexualreoffending relating to your prior sexual convictions. At that time, you werecompleting a 12-month sentence of intensive supervision after being convicted of sixdishonesty offences. You engaged in assessment interviews and your risk of sexualoffending was assessed as being moderate to high. It was recommended that youundergo a brief period of treatment with a Departmental Psychologist to develop asafety plan and to resume counselling in the community as required.[72] You subsequently engaged in one treatment session in November 2015. As Ihave mentioned, you developed a brief safety plan and were encouraged to form morefriendships and interests and re-engage with counselling. You did not schedule anyfurther sessions because you reported that you were actively managing your risk ofsexual reoffending and were in the process of moving to live in a new location. It isnotable that this was not long after you had offended against the two victims and itwas during the period you were storing objectionable images on your computer harddrive. As Ms Bennett submitted to me, it appears that you have now regressed inaccepting and acknowledging any of your past sexual offending.The principle that a lengthy determinate sentence is preferable if this providesadequate protection for society[73] There is a statutory principle of which I must be cognisant, that a lengthydeterminate sentence is to be recognised as preferable if it provides adequateprotection for society. In judging whether I can give effect to that preference, I amrequired to balance the risk of your reoffending and the need to protect the community.A sentence of preventive detention would ensure that you would not be released untilthere is a degree of confidence that the safety of the community would not be placedat risk. It would also ensure that upon release, should you revert to high risk behaviour,you would be recalled.Decision[74] Preventive detention is not a sentence of last resort but its imposition must becarefully considered.23 The Crown submits that the imposition of a finite sentencewill not alleviate the future risk that you pose of committing serious sexual offencesand that a term of imprisonment would be insufficient to meet the risk you pose to thecommunity. On the other hand, Mr McCall submitted that, prior to being remanded incustody on the current charges, you have never received a term of imprisonment. Hesubmitted that in the absence of the imposition of a previous term of imprisonment23 R v C, above n 16, at [6].with a rehabilitative component as part of that sentence designed to address yoursexual offending against young boys, a finite sentence should be preferred.[75] Mr Mitchell, I am satisfied that you are eligible to be sentenced to preventivedetention. I consider there is a high risk of you reoffending and that absent appropriateintensive treatment being effective you would be likely to commit another qualifyingsexual offence at the expiry of a finite sentence. The appropriateness, however, ofimposing a sentence of preventive detention turns largely on whether I consider it isthe only way to realistically protect the community from the risk you pose, or whetherthe risk can adequately be met by the imposition of a finite sentence, particularly whencoupled with an ESO — that being an Extended Supervision Order.[76] The sentence that would otherwise be appropriate in your case would be oneof nine years' imprisonment. That is a lengthy sentence. Preventive detention is anindeterminate sentence that would require a minimum period of imprisonment of atleast five years.24 As I have already noted, I consider that a minimum period ofimprisonment that would need to be imposed on any finite sentence would be one ofat least four and a half years' imprisonment. There is an obvious difference betweena finite and indefinite sentence, which underlines the need for me to be sure before Iimpose a sentence of preventive detention in your case. I must be satisfied that thefinite sentence cannot adequately address the issues to which your offending givesrise.[77] There are some strong factors in your case which would favour the impositionof preventive detention. First, there is the history of your offending which, whilesporadic and some of it of some vintage, as the health assessors have observed, it ispersistent. The risk that you pose has endured over the course of your adult life. Whilethe offending is relatively less serious than other forms of sexual offending againstchildren that involve penetrative activity, your grooming behaviours andmanipulation, which form part of your modus operandi, means your offending is moredifficult to detect.24 Sentencing Act 2002, s 89(1).[78] Your past involvement in rehabilitative initiatives indicate variable results.However, it is notable that you have not engaged in the type of intensive rehabilitativeprogrammes to which the health assessors have referred in their reports, such as theKia Marama programme, nor in any other type of sustained and intensive interventionto address your offending in the long term. Dr Tucker notes that in addition to a highintensity treatment programme and an extended period of time in a structured andsecure environment to consolidate any skills developed in treatment, you would alsolikely require a high level of reintegration support, again over an extended period.Should you engage actively in such processes and demonstrate change, Dr Tuckeropines that your risk of sexual reoffending may be successfully managed or mitigated.There remains therefore some possibility that participation in these types ofspecialised programmes to gain the necessary knowledge and strategies to preventyour offending, together with long term supervision, may reduce the risk you presentto the community.[79] However, as you present before me at sentencing and as the health assessorsnote, there is a considerable barrier to any meaningful prospect of you making progressto address the risk you present to the community. You continue to deny the offending.Moreover, you refuse to acknowledge your demonstrable sexual preference for pre-pubescent boys and you have an unwillingness to address the other features personalto you that place you at high risk of reoffending. There is no indication that you aremotivated to address the factors that sit behind your sexual offending. Your pastinvolvement in assessment and treatment initiatives appear to have been superficial,although you at least at the time made some attempt to participate. It appears in thewake of this offending that you have in fact regressed in your acceptance andacknowledgment of your conduct and the issues that bear on your offending to thepoint where you will take no responsibility.[80] Notwithstanding these considerable concerns and not without somereservations, having given the matter anxious consideration, I have decided to beguided by the statutory principle that a lengthy determinate sentence is preferable ifthis provides adequate protection for society. You will be subject to a finite sentenceof nine years' imprisonment. That, as I have said, is a very long sentence. You willnot be paroled unless the Parole Board considers that you can be safely released backinto the community. That will no doubt only be contemplated if you successfullyengage in the type of intensive rehabilitative steps that are necessary to address yoursexual offending against young boys and you can satisfy the Parole Board that you aregenuinely motivated to avoid contact with young children, and are prepared to submitto the type of oversight necessary to keep the community safe. Presently, with yourcontinued denials, you are a very long way from that. As a result, I intend to imposea non-parole period of six years' imprisonment. That is one year more than theminimum period of imprisonment that could otherwise have been imposed had Isentenced you to preventive detention.[81] One of the advantages of sentencing an offender to preventive detention is toprovide that person with an incentive to address the causes of their offending in orderto enable them to become eligible for release. I consider a similar result is achievedwith the imposition of a nine-year finite sentence with a six-year minimum period ofimprisonment, in the knowledge that should you fail to successfully engage in thenecessary rehabilitative programmes to address the causes of your offending, you areunlikely to be released until the completion of the whole term of that sentence. I amsatisfied that because of the length of the term of the finite sentence, coupled with theavailability of an Extended Supervision Order at its completion, the community isadequately protected. The length of the finite sentence coupled with such an order tipsthe balance against preventive detention and renders it sufficient in the circumstancesof this case notwithstanding your present poor rehabilitative outlook.Result[82] Mr Mitchell, you can remain seated as I impose sentence.[83] On each of the charges of making an objectionable publication you aresentenced to nine years' imprisonment. On those charges there will be an order thatyou serve a minimum period of imprisonment of six years.[84] On each of the charges of distributing an objectionable publication you aresentenced to concurrent terms of five years' imprisonment.[85] On the representative charge of possession of an objectionable publication youare sentenced to a concurrent term of three years' imprisonment.[86] On the charges of committing an indecent act with a child under 12 you aresentenced on each charge to concurrent terms of four years' imprisonment.[87] On the two charges of burglary you are sentenced on each to a sentence of threeyears' imprisonment.[88] As I have said, all sentences are to be served concurrently.Strike warning[89] Because of your conviction on charges of committing an indecent act on a childit is necessary that you be warned of the consequences of being convicted of anyfurther serious violent offence. You will also be provided with a written notice thatcontains a list of these serious violent offences.[90] The warning is this. If you are convicted of any one or more serious violentoffences other than murder committed after this warning and if the Judge imposes asentence of imprisonment, then you will serve the sentence without parole or earlyrelease. If you are convicted of murder committed after this warning, then you mustbe sentenced to life imprisonment without parole unless it would be manifestly unjustto do so. In that event, the Judge must sentence you to a minimum term ofimprisonment.Child Sex Offender Register[91] Because I am imposing a sentence of imprisonment on you today for aqualifying offence under the Child Protection (Child Sex Offender GovernmentAgency Registration) Act, you are a registrable offender under this legislation. Thismeans that your name and information relevant to you and your offending will beplaced on the Child Sex Offender Register. It also means you have initial and ongoingreporting obligations under the Act, although they of course will only be triggered atthe end of your sentence. It is an offence to fail to comply with your reportingobligations without reasonable excuse, or to provide false or misleading information.25It is also an offence to apply to register a change of your name without first havingobtained the written approval of the Commissioner of Police.26[92] In your case, your reporting obligations begin when you cease to be in custody.As the conviction involves a Class 2 offence under the Act, you will remain on theregister and will have to comply with reporting obligations for a period of 15 years.27[93] You will be given written notice of your reporting obligations and the penaltiesfor failing to comply with those obligations.Order for destruction of electronic equipment[94] The Crown has also sought and there will be an order for the destruction of allelectronic equipment capable of storing images or capable of accessing the internetlocated at your address, including computer hard drives, smartphones and aPlayStation.[95] You may stand down.Addendum[96] I note the specific request that has been made by Mr Mitchell that the order forthe destruction of electronic equipment will not take effect until the expiry of theappeal period.Solicitors:Crown Solicitor, TimaruPapprills, Christchurch25 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, ss 39 and 40.26 Section 53.27 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 35(1)(b).